Taking Law Into Shangri-La
By Hadley Arkes
For the past year-and-a-half, the most exotic state in America has dangled before us the possibility of taking our laws into the realm of Shangri-La. As with most moves these days to bring about a revolution in the laws, the initiative has come from the courts, not the legislature. The result is that we may now easily imagine the script of a commercial airing in 1996 to promote a novel sort of tourism: "Hawaii, land of the luau and poi, the island of tropical paradise, now offers you gay marriage and invites you to take your marriage license back home with you."
In 1993, in the case of Baehr v. Lewin, the Supreme Court of Hawaii was willing to sustain a challenge to the traditional laws on marriage by drawing out the implications contained in the Hawaiian version of the Equal Rights Amendment. Like the amendment that failed at the national level, the Hawaiian ERA forbids discriminations based on sex and gender. When the original ERA was a live issue in national politics, some asked whether the logic of the ERA would require the acceptance of "homosexual marriage." The partisans of the ERA sought to finesse the question, or steer round it. But now the judges in Hawaii have drawn precisely the conclusion that the supporters of the ERA had sought so artfully to disclaim: The traditional laws on marriage do make a discrimination based on gender, because they grant a marriage license to a heterosexual couple while thy deny it to a couple composed of two persons of the same sex.
Since judges have turned themselves into lawgivers, they have had to cultivate the arts of delicacy, and so the Hawaiian court deftly held back from drawing the conclusion fully. For the moment, the court simply recorded the judgment that discrimination based on sex were now "suspect classifications." The state could be obliged then to bring forth a "compelling" interest to justify discrimination against homosexual couples. The matter was returned to the lower courts, where the decision can unfold in stages and soften the shock of surprise. But the court has framed the problem, defined the premises, assigned the burdens of argument; and so the result seems to have been foretold.
Still, a movement arose in the legislature to reaffirm the traditional laws on marriage. Surveys showed that nearly 70 percent of the public were opposed to "same-sex-marriage," and the issue soon became the preeminent question in the legislature.
But even with this mounting wave of public sentiment, a legislature led by the Democrats showed no will to move the bill out of committee. The lawmakers had to be prodded by a group called Stop Promoting Homosexuality in Hawaii, an organization formed by Michael Grabbard, a young restaurant owner with five children. Grabbard printed the names and phone and fax numbers of key senators who were holding out, and the result was an avalanche of calls and letters. This past June, the legislature finally passed a bill reasserting the traditional law. Gay activists were sobered as the bill passed the house 36-12 and the Senate 21-4.
And yet, all of this may be so much a frenzy of activity without consequence. The judges have already given their rendering of the state constitution, and this reading would have to take precedence over any ordinary statute passed by the legislature. The hope, on the part of the Hawaiian resistance, is that the sweep of public opinion and the dramatic majorities in the legislature may concentrate the minds of the judges and induce them, in a sudden rush of prudence, to back away. But the judges know that if they hold firm, they can be overridden only through a constitutional amendment. And the odds in that case are tipped in their favor, for already the word is getting around: the passage of a constitutional amendment may invite the kinds of boycotts visited on the state of Colorado. Businessmen are skittish over the prospect of hostile forays by Barbra Streisand and company. And at the end of the day a challenge in the federal courts could overturn the amendment.
But if the state of Hawaii establishes the legality of marriage for homosexuals, the question enters a new phase. For the judgment in Hawaii would then connect with the "Full Faith and Credit" clause of the Constitution (Article IV, section 1). That is the clause that indicates that a driver's license secured in Massachusetts will be honored in Illinois; or that the marriage legally performed in Tennessee will be accepted in Minnesota.
A question would quickly arise as to whether other states would be obliged to honor the gay marriage sanctioned by the laws of Hawaii. The presumption would tilt to the side of honoring the marriage; yet there have been exceptions. Judges might bite their lips and honor the marriage of a 15-year old from Kentucky, but when it came to the matter of incestuous marriages, the sates would draw the line. With issues of that kind, the states can argue that they are dealing with deep moral understandings about he ingredients of a "legitimate" marriage.
But for states to hold back in this way, it must continue to be legitimate for a state to incorporate in its laws the understanding that homosexuality is not on the same moral plane as normal sexuality, with an equal claim to be respected and promoted. That is the position the U.S. Supreme Court sustained in 1986, in Bowers v. Hardwick. The Court declined to strike down the statute on sodomy in Georgia. Strictly speaking, the Court did not declare the wrongness of homosexuality; it merely refused to find, in the practice of homosexuality, a fundamental "right" that was protected by the Constitution. That question was left to the moral judgments formed by the people in the separate states. About half the states had repealed their laws on sodomy, and yet even at this date, 24 states have refused to dismantle their laws on sodomy, and yet even at this date, 24 states have refused to dismantle their traditional policy.
But there have been signs that there are no longer five votes on the Supreme Court to preserve the ruling in Bowers v. Hardwick. Judges in the lower courts seem to sense that the Supreme Court is on the verge of overruling Bowers, if they can only send up a case on appeal that provides an excuse for revisiting the earlier judgment.
And so some lower-court judges have been drawn into a new course of aggressiveness. If they succeed in giving Providence a helping hand, the result would extend far beyond merely striking down laws on sodomy. Viewed narrowly, the overturning of Bowers would mean only that the states may not make private homosexual acts into criminal wrongs. But any such decision is likely to be understood far more broadly. It is likely to bring forth a new conviction there is something deeply unreasonable in the state of mind that would regard homosexuality as a style of life that deserves anything less than the full respect of the law. The decision would spark a whole new round of litigation to challenge every lingering provision in which the law withholds its approval from homosexuality. Some judges seem to be at the threshold of making this move, and if it were combined with a decision like the one now coming from Hawaii, it would bring about a revolution in our laws, with vast rippling effects.
For one thing, that simple step would remove, in a stroke, the moral ground on which a state may still refuse to honor a homosexual marriage performed in other states. In that event, the judges of one states could, in effect, "nationalize" homosexual marriage. Gay couples would merely need to fly to Hawaii for the ceremony.
But that curious state of affairs would in turn set off further reflexes in some judges, and we should not be surprised to hear arguments of this kind: Under the current laws, only gay couples rich enough to afford a trip to Hawaii may have access to the "right" of homosexual marriage. By holding then to the traditional law, a state like Louisiana would be denying to poor gay couples the Equal Protection of the Laws. And so resourceful judges, using arguments no more extravagant than the ones they have used in the past, could strike down the remaining statures in all of the other states that refuse to recognize gay marriage.
Still, the story would not stop there, for the implications radiating outward from these initial principles cannot readily be contained. The traditional understanding of marriage is grounded in the "natural teleology of the body"--in the inescapable fact that only a man and a woman, and only two people, not three can generate a child. Once marriage is detached from that natural teleology of the body, what ground of principle would thereafter confine marriage to two people rather than some larger grouping? That is, on what ground of principle would the law reject the claim of a gay couple that their love is not confined to a coupling of two, that they are woven into a larger ensemble with yet another person or two? And if the law finds no principled ground for rejecting plural spouses, how could that arrangement be confined to people of the same sex? Why would it not have to be available in principle, to clusters of mixed sexes? In short, the move to homosexual marriage would also seem to remove, in its sweep, the principals that bar polygamy.
I am not predicting that there will be a rush to polygamy or polyandry if the law permits homosexual marriage. I am posing, instead, this question: If we acquiesce in these changes, if we admit the steps in this legal chain, what is the ground of principle on which we could tenably resist any of the further steps? Events may be unfolding here in part according to a design of litigation. Gay activists have taken their model from the strategy of litigation in the civil rights movement, which moved step by incremental step. But even the gay activists are not fully in control of this engine of litigation, and even they may not quite see the fuller reach of the changes they are triggering.
Two State Legislatures Take on the Courts
When the Hawaii Supreme Court appeared to be on the verge of upending the state's marriage laws to permit same-sex marriage, the Hawaiian legislature protested this usurpation of its lawmaking powers by enacting Act No. 217, reiterating in state law that legal marriage could only be between two persons, one male and one female. The opening section of the act firmly rebukes the state Supreme Court for practicing judicial imperialism:
"Any change in these [marriage] laws must come from either the legislature or a constitutional convention, not the judiciary. The Hawaiian Supreme Court's recent plurality opinion in Baehr v. Lewin effaces the recognized tradition of marriage in this State and, in so doing, impermissibly negates the constitutionally mandated role of the legislature as a co-equal, coordinate branch of government.
"...the question before the court in Baehr was and is essentially one of policy, thereby rendering it inappropriate for judicial response. Policy determinations of this nature are clearly...more properly left to the legislature... Contrary to the plurality's assertion that it was not engaging in judicial legislation, the court's intervention in this matter encroaches on the functions of the legislature in its lawmaking function, thereby impinging on the separation of powers of the respective branches of the government....
"The Hawaii state Legislature, as the elected representatives of the people of the State of Hawaii, is along with the executive branch, the appropriate source of major policy initiatives.
"...The legislature finds that Hawaii's marriage licensing statures, both as originally enacted and at present, are intended to apply only to male-female couples, not same-sex couples. The Court in Baehr has effectively usurped the role of the Hawaii state legislature on this issue by substituting its own policy judgment for that of the people of Hawaii. The legislature stresses that since the determination of the nature of the marital relationship, together with its rights and benefits falls more appropriately within the province of the legislature as one of policy, this issue is more properly dealt with in the legislative rather than judicial forum. Under the principle of separation of powers, the Court therefore should have deferred to the legislature in its determination and interpretation of the marriage contract..."
Lynn D. Wardle, a Brigham Young University Law School professor who was following this debate in Hawaii, noticed while teaching his family law class that Utah's marriage stature recognized as valid in Utah any marriage that was valid in the jurisdiction where it was solemnized. At his urging, State Rep Norm Nielsen proposed a bill to amend Utah's laws so that out-of-state marriages that were incestuous, polygamous or same-sex would not be recognized. Fearing that if the bill were held till the next legislative session the Hawaiian Supreme Court would already have "legislated" legal same-sex marriage for Hawaiians and tourists alike, Utah's state legislature overwhelmingly approved Nielsen's bill in the closing minutes of their 1995 session.
Efforts to forestall same-sex marriage are also underway in other Western states, including Alaska and South Dakota. But as Hadley Arkes points out in the adjoining article, all of these state laws would be overridden in a single stroke if the Supreme Court simply decided to revise its decision in Bowers v. Hardwick, a move that might now command a majority on the Court. In that event, it would become illegitimate for a state to incorporate, in its laws, any premise that implies an adverse judgment on homosexuality.
—Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College.
